In general, rape is unlawful sexual intercourse forced by a man on a woman against her will and without her consent. Rape can also occur with the victim’s consent if the consent was obtained through the use of any of the following:
- Violence or the threat of violence;
- Fear;
- Fraud;
- Menace;
- Duress;
- Force.
It is also important to note that sexual intercourse with a woman whose will is temporarily lost because of intoxication or unconsciousness resulting from the use of alcohol, drugs, or even sleep meets the definition of rape in Georgia.
In Georgia, rape is a gender-specific crime that applies only to acts committed by a man against a woman. Sexual offenses that involve two men or two women, which might be defined as rape in some states, are charged as aggravated sodomy or sexual battery in Georgia. Felony aggravated sodomy is punished by a minimum of 25 years in prison. Misdemeanor sodomy is punishable by imprisonment in jail for a period not to exceed 12 months and/or a fine not to exceed $1,000.
Sexual battery is a high and aggravated misdemeanor in Georgia, and it is punished by a maximum sentence of 12 months in jail and a $5,000 fine.
How Is Rape Defined in Georgia?
Under Georgia law, the crime of rape is committed when a man obtains “carnal knowledge” of a woman through force and against the woman’s will, i.e. without the woman’s consent. Rape is also committed in Georgia when a man has carnal knowledge of a female under the age of 10 years old. Conviction of rape on the basis of carnal knowledge of a female under the age of 10 does not requre proof that force was use or that the victim did not consent.
What Is “Carnal Knowledge”?
Per the definition of rape in Georgia, a male obtains carnal knowledge of a female when the male’s sex organ penetrates the female’s sex organ.
Will I Get Arrested If the Woman I Am Accused of Raping Is My Wife?
A man can be guilty of raping his wife in Georgia. Marital rape occurs when a person has sexual intercourse with their spouse without the spouse’s consent. So, in Georgia, the fact that the victim is the defendant’s spouse is not a defense to a charge of rape.
Is a Rape Charge in Georgia the Same as a Statutory Rape Charge?
Rape and statutory rape are two separate crimes. The crime of engaging in sexual intercourse with any person who is under 16 years of age and not the perpetrator’s spouse is the crime of statutory rape. Whether the victim gives their consent or not is not material as lack of consent is not an element of the crime. A victim of statutory rape is not legally old enough to consent, even if they claim that they are old enough or claim to understand what they are doing. The use of force, the threat of force, fear or fraud is not an element of statutory rape.
Rape occurs when the victim has not consented to sex and sex is forced uipon the victim through the use of force or the threat of force, fear or fraud.
In Georgia even star-crossed young lovers can be prosecuted under Georgia’s statutory rape law. However, if the victim is between 14 and 16 years old and the defendant is 18 years years old or no more than four years older than the victim, he or she faces a misdemeanor charge only, as opposed to a felony rape charge.
Otherwise, statutory rape in Georgia is a felony and the maximum sentence is 20 years in prison if the person convicted is over the age of 21. Those convicted of statutory rape must also register as sex offenders in Georgia.
What Is the Punishment for Rape in Georgia?
The punishments prescribed for rape in Georgia are the harshest possible in any criminal justice system. The possible punishment for rape includes the following:
- Life in prison without parole;
- Life in prison with parole;
- A sentence of imprisonment for 25 years to life, and if the convicted person should ever leave prison, they would be subject to probation for life.
A person convicted of rape in Georgia is guilty of a felony. Reportedly, an experienced Georgia criminal defense attorney might be able to negotiate a lesser punishment in exchange for the defendant’s agreement to plead guilty.
Georgia law still prescribes the penalty of death for conviction of rape but in the case of Coker v. Georgia, the U.S. Supreme Court held that a sentence of death for a conviction of rape is unconstitutional if the victim was not killed.
In addition to prison, fines, or both, a person over 21 years of age who is convicted of rape must register as a sex offender for the rest of their life. Failure to comply with the registration requirement can result in an additional felony charge with punishment of from 1 to 30 years. Second and subsequent offenses can be punished by from 5 to 30 years in prison.
Are There Any Defenses to a Rape Charge in Georgia?
Defenses to rape charges in Georgia may include:
- Consent: If the two parties were both of sufficient age and the alleged victim consented to the sex, then there is no crime. Lack of consent is a necessary element of the offense of rape. Of course, proving that the victim consented might be challenging;
- Impotence: Presenting physical evidence that the person charged lacks the physical capacity to have intercourse can be used as a defense. However, if the prosecution can produce evidence that penetration occurred, even if slight, this would rebut the defense of impotence;
- Failure to Withdraw Consent: If the alleged victim at first consented to sexual intercourse and then failed to retract this consent, this can constitute a defense;
- Lack of DNA Evidence: If a victim seeks medical attention immediately after the alleged rape, but there is no DNA evidence of penetration or of the act occurring, this lack of evidence can be used as a defense. The person charged can argue that the alleged act never occurred, so that is why there is not evidence;
- Prior Consensual Sexual Activity: If the perpetrator and the victim had prior consensual six, this can mitigate the punishment. It is, however, not a complete defense. Still presenting evidence to show that the accused and the alleged victim had consensual intercourse on prior occasions is helpful to the accused.
There are other defenses that can be used against any kind of criminal charge. For example, for the alibi defense, the person charged claims that they could not have been the perpetrator of the crime because they were somewhere else with someone else at the time the crime was committed.
If the prosecution has DNA evidence that shows that the person charged with the crime was in fact the perpetrator, this can be difficult to refute. It is, however, possible to challenge the testing methods used to collect the DNA sample and match it to the DNA of the person charged.
Do I Need a Lawyer?
Being represented by an experienced criminal defense lawyer is an absolute necessity if you have been charged with rape because a conviction can result in life in prison without parole. A criminal defense lawyer knows about the elements of rape in Georgia and possible defenses. They would also know how to negotiate the best possible outcome of your case. You want to contact a Georgia criminal lawyer immediately to seek help with your rape charge.
